Wilson v. State, No. 4-784A201

• Docket Nº: No. 4-784A201
• Citation: 472 N.E.2d 932
• Case Date: December 26, 1984
• Court: Court of Appeals of Indiana

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472 N.E.2d 932 Anthony WILSON, Appellant (Defendant Below),
v.
STATE of Indiana, Appellee (Plaintiff Below). No. 4-784A201. Court of Appeals of Indiana,
Fourth District. Dec. 26, 1984.

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Jack R. Shields, Batesville, for appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Richard A. Alford, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

Anthony Wilson is before this court again after having been retried upon convictions we reversed in Wilson v. State (1983), Ind.App., 453 N.E.2d 340, because the trial court erroneously denied Wilson's request for a jury trial. In the instant appeal, Wilson propounds three errors he contends require us to reverse the jury verdict herein for driving while intoxicated. We find that one issue is sufficient to reverse Wilson's conviction: the trial court erred in denying Wilson's motion for change of judge, on the basis of alleged bias and prejudice, without a hearing. We reverse and remand.

FACTS

On December 6, 1982, the trial judge, at a trial to the bench, found Wilson guilty of unsafe lane movement and driving while intoxicated. On September 7, 1983, this court, by its First District, reversed the convictions upon determining the trial court had improperly denied Wilson his right to jury trial. See Wilson v. State, supra, 453 N.E.2d 340. Only five days after we rendered our decision, the trial court set the case for a new trial, this time by jury, on September 12. On September 15, Wilson filed a verified motion for change of venue from the judge, which motion alleged bias and prejudice in the following terms:

"1. On December 6, 1982 affiant appeared before the Hon. Harlan H. Hoffman, Judge of the Dearborn County Court, for trial on charges of Transporting Alcoholic Beverages, Unsafe Lane Movement and Driving While Intoxicated.

2. Affiant was found guilty by the Hon. Harlan H. Hoffman of Unsafe Lane Movement and Driving While Intoxicated, and not guilty of Transporting Alcoholic Beverages.

3. Affiant appealed the convictions of Unsafe Lane Movement and Driving While Intoxicated, and on September 7, 1983 the Court of Appeals of Indiana, First District, reversed said convictions and granted affiant a new trial.

4. The Hon. Harlan H. Hoffman has heard the evidence herein and concluded beyond a reasonable doubt that affiant is guilty of Unsafe Lane Movement and Driving While Intoxicated, and therefore,

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the Hon. Harlan H. Hoffman is biased and prejudiced against affiant.

5. Affiant is unable to obtain a fair trial due to the conclusions already reached by the Hon. Harlan H. Hoffman and accordingly, a Special Judge should be appointed to preside at the new trial of affiant.

WHEREFORE, Anthony H. Wilson respectfully prays the Court for an order granting this motion for change of venue from the Judge and for all other just and proper relief in the premises."

Record, p. 6. The judge denied the motion on October 4, but there is no evidence in the record that any hearing was ever held on the matter.

The court reset the trial date on October 13, and on December 14, Wilson renewed his motion for change of judge, incorporating the allegations of his first motion and appending as additional proof a November 4 motion by the prosecutor to dismiss the drunk driving charge for lack of prosecutorial merit, which motion the trial court had evidently never addressed:

"I, Anthony Wilson, state under oath that:

1. I timely filed my Motion for Change of Judge in this Cause after this case was remanded on appeal.

2. That Motion was denied.

3. The Prosecutor in this case has moved for dismissal of the D.W.I. charge against me. Exhibit A and B.

4. My attorney assured me that the original of this Motion was delivered to the Court for signature.

5. The pre-trial conference was held on November 29, 1983, at 2:00 P.M. My counsel advised me that at the conference the Prosecutor requested that the Court sign the dismissal.

6. The Court has now set my case for trial on January 23, 1984, after all parties agreed to the dismissal of the D.W.I. charge.

7. I restate all my allegations from my original Motion as if set out in full."

The trial court's response two days later to Wilson's renewed motion for change of venue was the following:

"WHEREAS, the defendant filed a Renewed Motion for Change of Judge herein on December 14, 1983, the Court shall rule upon such upon the expiration of thirty days from the date of said filing without hearing argument unless such is specifically requested in writing before said time."

Record, p. 15 (Emphasis added). The court then denied Wilson's second motion for change of venue on February 13, 1984, again without a hearing.

On that same February 13, the case proceeded to trial to the jury, which rendered a guilty verdict against Wilson for the offense of driving while intoxicated but a not guilty decision for unsafe lane movement. The court sentenced Wilson to ten days, suspended, and a $150 fine and ordered Wilson's license be restricted and that he attend an alcohol education program. This appeal ensued.

DECISION

We must first address a jurisdictional problem apparent on the record. The trial court first set the matter for retrial on September 12, 1983, only five days after our original decision. He had no jurisdiction to do so because our opinion had not yet been certified and thereby spread of record. See Clapper v. Bailey (1858), 10 Ind. 160; IND.CODE 33-15-1-5. Certification could not occur until "expiration of the time within which a petition for a rehearing may be filed and a petition for transfer may be filed." Ind.Rules of Procedure, Appellate Rule 15(B). In this case, we take judicial notice of the fact that the clerk of the supreme court did not issue certification of our opinion until October 12, 1983. Thus, the trial court, without jurisdiction, both set this cause for trial on September 12 and denied Wilson's first motion for change of venue on October 4. This was error. See also Coulson v. Indiana & Michigan Electric Co. (1984), Ind., 471 N.E.2d 278. The court did properly reset

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the trial on October 13, but failed to properly rule at any time on Wilson's first motion for change of judge. We deem that motion to have remained pending and subsequently amended by Wilson's second motion. Regardless, we will proceed to treat both motions as having been improperly denied without hearing.

The major point in Wilson's appellate argument to which we address ourselves is that the trial court erred in denying both of Wilson's motions for change of venue from the judge without affording him a hearing. After considering the language of Ind.Rules of Procedure, Criminal Rule 12, and the relevant case law, we decide that the court failed to employ the proper mandatory procedure in denying the motions without such hearing. ¹

The language of C.R. 12 provides the solution to the problem here. This rule states in pertinent part:

"In any criminal action, a motion for change of judge or change of venue from the county shall be verified or accompanied by an affidavit signed by the Criminal Defendant or the Prosecuting Attorney setting forth facts in support of the statutory basis or bases for the change. Any opposing party shall have the right to file counter-affidavits within ten days, and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion.

In any criminal action, no change of judge or change of venue from the county shall be granted except within the time herein provided.

An application for a change of judge or change of venue from the county shall be filed within ten days after a plea of not guilty, or if a date less than ten days from the date of said plea, the case is set for trial, the application shall be filed within five days after setting the case for trial. Provided, that where a cause is remanded for a new trial by the Supreme Court, such application must be filed not later than ten days after the party has knowledge that the cause is ready to be set for trial.

Provided, however, that if the applicant first obtains knowledge of the cause for change of venue from the judge or

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from the county after the time above limited, he may file the application, which shall be verified by the party himself specifically alleging when the cause was first discovered, how it was discovered, the facts showing the cause for a change, and why such cause could not have been discovered before by the exercise of due diligence. Any opposing party shall have the right to file counter-affidavits on such issue within ten days and after a hearing on the motion, the ruling of the court may be reviewed only for abuse of discretion...."

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